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Zipes v. Trans World Airlines Inc.

decided: May 6, 1988.


Appeal from the United States District Court for the Northern District of Illinois, Western Division, No. 74 C 2063--Stanley J. Roszkowski, Judge.

Cummings, Coffey, and Manion, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge.

This dispute over liability for statutory attorneys' fees has its origins in a 1970 class action filed by the plaintiffs against Trans World Airlines ("TWA") alleging unlawful sex discrimination in violation of Title VII of the Civil Rights Act of 1961, 42 U.S.C. § 2000e et seq. After nearly nine years of litigation, the plaintiffs entered into a comprehensive settlement agreement with TWA which was contested by the intervenor, the Independent Federation of Flight Attendants ("IFFA"), on the grounds that the terms of the settlement violated the rights of those TWA flight attendants not members of the plaintiff class. IFFA's opposition to the settlement agreement consumed three years of litigation culminating in 1982 when the plaintiff class prevailed before the Supreme Court. Subsequently, pursuant to section 706(k) of Title VII, 42 U.S.C. § 2000e-5(k), plaintiffs' attorneys successfully petitioned the district court for fees incurred in connection with their post-settlement legal work. We affirm the district court's award of post-settlement fees against IFFA as well as its use of a multiplier in calculating that award.


The proceedings which pre-date this lawsuit are summarized in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982). The plaintiffs brought this class action against TWA back in 1970, challenging the airline's policy of automatically terminating the employment of all female flight attendants who became mothers while permitting their male counterparts, new fathers, to continue flying.*fn1 Soon after the filing of suit by the plaintiffs, TWA abandoned its "no-motherhood" policy and IFFA's predecessor, then representing both the plaintiff class and unaffected flight attendants, entered into a settlement with TWA. Although the district court approved the proffered settlement, several disenchanted class members appealed. We reversed the district court's approval of the 1971 settlement based upon the conflict we perceived between the then union's obligations to the plaintiff class on the one hand and to the then-currently working flight attendants on the other. Air Line Stewards and Stewardesses Association v. American Airlines, 490 F.2d 636 (7th Cir. 1973). We ordered IFFA's predecessor to be replaced as the class representative.

Following reinstatement of the lawsuit, the district court granted the plaintiffs' motion for summary judgment, concluding that TWA's "no-motherhood" policy violated Title VII's proscription against discrimination in employment on the basis of sex. We affirmed the district court's finding of unlawful employment discrimination but held that the claims of a number of the members of the class were barred because charges had not been timely filed with the Equal Employment Opportunity Commission ("EEOC"). In re Consolidated Pretrial Proceedings in the Airline Cases, 582 F.2d 1142 (7th Cir. 1978). Our holding on the timeliness issue necessitated that we divide the plaintiff class into two groups--Sub Class A, class members whose EEOC charges were timely, and Sub Class B, those whose charges were untimely--and that we remand the case with respect to the timely claims of Sub Class A.

Prior to any action in the district court in response to our remand, the parties reached a settlement which provided, inter alia, that TWA establish a $3,000,000 settlement fund to benefit all class members and that each class member be credited with full company and union seniority from the date of her termination by the airline. IFFA, the union certified to act as the collective-bargaining agent both for those TWA flight attendants not affected by the airline's discontinued "no-motherhood" policy and for flight attendants hired since the termination of the plaintiffs, sought and received permission to intervene in the lawsuit to object to the settlement. Specifically, IFFA opposed the proposed settlement on two grounds: first, that the untimely filing of charges with the EEOC by members of Sub Class B left the district court without jurisdiction to consider equitable relief affecting them, and second, that reinstatement of the plaintiffs with full retroactive "competitive" seniority*fn2 would violate the collective bargaining agreement then in place between TWA and the union's incumbent members. After three days of hearings, during which time IFFA had an opportunity toe air its objections, the district court approved the settlement agreement and expressly found that "full restoration of retroactive seniority will not have an unusual adverse impact upon currently employed flight attendants in a manner which is not typical of other Title VII cases. . . ." (Mem. Op., November 8, 1979 at 2.)

IFFA appealed, arguing that in light of this court's earlier decision that the timely filing of an EEOC charge was a jurisdictional prerequisite, the district court erred in holding that it retained jurisdiction to approve the settlement agreement with respect to Sub Class B. Once again, we ruled in favor of the plaintiffs and affirmed the district court, reasoning that "the principles favoring settlement of class action lawsuits remain the same regardless of whether the disputed legal issues center on the jurisdiction of the court over the action." Air Line Stewards and Stewardesses Assn. v. Trans World Airlines, Inc., 630 F.2d 1164, 1169 (7th Cir. 1980). We also bed use of the remedy of retroactive competitive seniority for eligible class members; in our view the settlement responded appropriately both to TWA's past acts of discrimination as well as to the tangible consequences of those past acts. Id.

IFFA filed a petition for certiorari. The Supreme Court granted the petition and consolidated it with an earlier petition filed by the plaintiffs, consideration of which the Court had deferred in light of the then-ongoing settlement negotiations between the plaintiffs and TWA. The plaintiffs had sought review of our prior decision holding that timely filing of EEOC charges constituted a jurisdictional prerequisite which barred the claims of Sub Class B. IFFA, on the other hand, petitioned for review of our ruling that the terms of the settlement agreement--the reinstatement of discharged flight attendants with retroactive competitive seniority--did not impermissibly infringe upon the collectively-bargained for rights of incumbent flight attendants. In Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982), the Court held that we had been mistaken in construing the filing requirement of Title VII, Section 2000e-5(e), as being jurisdictional but agreed that reinstatement of the plaintiffs with full retroactive competitive seniority was a remedy both authorized by Title VII and appropriate in these circumstances.

Having been twice vindicated in the Supreme Court, plaintiffs' attorneys petitioned the district court for an award of fees against IFFA for their successful defense of the settlement agreement. In turn, the district court assessed IFFA $57,258 as fees for counsel for Sub Class A and $171,747 (comprised of a "lodestar" figure of $85,873.50 increased by a multiplier of 2) as fees for counsel for Sub Class B. Air Line Stewards v. Trans World Airlines, Inc., 610 F. Supp. 861 (N.D. Ill. 1986). Subsequently, upon motion, the district court lowered the multiplier used to compute the fees for Sub Class B from 2 to 1.44, yielding an award to counsel of $123,657.84. IFFA's total liability for fees incurred solely as a result of its challenge to the settlement agreement thus currently stands at $180,915.84.


On appeal, IFFA asserts that the fee-shifting provision of Title VII, section 706(k),*fn3 does not authorize an award of attorneys' fees against an intervening party which has not been accused of a violation of federal law and which, in an effort to protect the rights of its members, raises arguments analogous to those a plaintiff would ordinarily make. Alternatively, in the event we disagree with its interpretation of section 706(k), IFFA points to certain "special circumstances" which it claims render an award of fees inappropriate. Finally, IFFA argues that even if the district court's decision to ...

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